Medical malpractice means the provision of medical services while deviating from its reasonable level of caution, when this deviation caused harm to the patient, which would not have been caused had it not been for this deviation. For example: prescribing an inappropriate drug, while any reasonable physician would not prescribe it in the circumstances of the case, and causing harm to the patient due to taking it.
Medical malpractice is a certain type of malpractice. Civil lawsuits for tort of negligence are associated with tort law. In general, when it can be proved that the defendant's conduct constitutes negligence, a right arises to receive compensation from the defendant for the damage caused to the plaintiff due to the negligence. Negligence in this sense is a legal concept that describes a level of guilt.
Tort law, including the tort of negligence, allows for compensation even when the tortfeasor had no intention of harming. This distinction is significant with regard to the field of medicine because in principle the purpose of the physician is to assist and not to harm the patient. However, if negligence is found, compensation will also be given in the absence of intent to harm. That is, there is judicial review of physicians as well. This is because the company considers negligent activity an activity within poor standards, and will therefore be considered an activity that has social guilt even if the goal was positive.
Israeli medical malpractice law
Medical malpractice does not receive an independent definition in Israeli law, but is based on the general definition of the tort of malpractice that appears in sections 35 and 36 of the Torts Ordinance (new version):
35. Negligence
Did a person do an act that a reasonable and prudent person would not have done in the same circumstances, or not have done an act that a reasonable and prudent person would have done in the same circumstances, or that in a certain profession he did not use skill, or exercise caution In the same circumstances - this is negligence; And if he was negligent as aforesaid in relation to another person, in respect of whom he has in the same circumstances an obligation not to act as he did, then it is negligence, and the person who causes negligence to another does an injustice.
36. Obligation towards every person
The obligation referred to in section 35 is imposed on every person and on the owner of every property, whenever a reasonable person should in those circumstances have foreseen that in the ordinary course of things they may be harmed by an act or omission expressly set forth in that section.
The Israeli court distinguished between three types of medical malpractice:
Negligence in medical treatment itself
Negligence due to lack of informed consent
Violation of the autonomy
Other ways to get compensation
Medical malpractice is the most common way to impose liability for the benefit of someone injured as a result of medical treatment, but there are other ways.
There are few instances of an automatic right of action that confers a right to compensation without proof of guilt. These cases are given in the medical context to those who have been injured as a result of a vaccine (Vaccine Victims Insurance Law, 1989), blood transfusions (Blood Transfusion Victims Compensation Law, 5733-1992) or treatment of ringworm disease (Ringworm Compensation Victims Law , 5777-1994).
Additional ways: violation of a statutory duty, according to section 63 of the Torts Ordinance, and assault under section 23 of the Ordinance. Similar to the tort of negligence, these torts confer the right to sue for a wide range of cases and circumstances, not necessarily in the medical context. In addition, in special cases that usually concern mentally ill people who are hospitalized in involuntary hospitalization, a cause of action for false imprisonment under section 26 of the Torts Ordinance may arise.
historical background
In ancient times - already in ancient times there was a reference to medical damages caused by doctors while treating patients.
Under Hamorbi's laws, the doctor would be subject to various punishments (such as amputation of his right arm) if he performed surgery that resulted in the patient's death.
Under ancient Persian law, a surgeon was punished for the death of a patient as a lawful murderer, unless he had previously performed successful surgeries on three unbelievers.
Even in some ancient European countries there were severe punishments against doctors who caused the death of patients, and there were even places where the doctor who caused the death of a patient in surgery was handed over to the relatives of the deceased who would do with him as they wished.
Ancient Greek physicians, on the other hand, enjoyed absolute immunity, and had no legal responsibility, even if the death of the patient was initiated, although Plato objected to the immunity of a physician who intentionally killed him.
The physicians of ancient Rome also enjoyed almost complete immunity, though in cases where a physician could be accused of dangerous negligence, he was sentenced to imprisonment, though Pliny objected to this situation.
In the Middle Ages the strict laws usually ruled, and instead of such laws not being effectively enforced, the masses would spend their revenge on a doctor who failed in surgery or treatment. In the fifteenth century the Count of Nations still sentenced a physician to death by fire for failing to treat Pope John XII, and when he died, the Pope's friends scanned the flesh of the surgeon who failed to prolong his life. A similar fate befell the court doctor of the court of Ivan III of Russia, whose head was publicly splashed in 1490 for the census of nations, failing to cure the son of the Grand Duke.
Factual Background
Prevalence of medical errors - It has always been known that a significant percentage of medical errors occur while treating patients, and that these errors cause damage to varying degrees.
Illness or physical or mental injury to a patient caused by a physician as a result of medical treatment is called a heterogeneous illness or injury, and it can be as a result of erroneous judgment, as a result of negligence, as a result of recklessness, or as a result of ignorance. A 1964 article reported that 20% of all patients hospitalized in a university hospital suffered from iatrogenic injuries, of which 20% suffered severe and even fatal injuries, and a later article found that 36% of all inpatients in a university hospital suffered from iatrogenic damage, of which 25% suffered from ovarian cancer. . A comprehensive study of all hospitalizations in New York State found that about 4% of the patients suffered significant iatrogenic damage, which prolonged their hospitalization, or caused them considerable harm, of which about 14% suffered fatal injuries. These data mean that in the United States, 180,000 people are injured each year by iatrogenic injuries. In 1995, there were about one million hospitalizations in Israel. According to the American data, therefore, about 5,000 deaths in Israel were due to medical accidents, of which about 2,500 deaths a year are caused in part or the reserve by medical negligence. Later work found that in two of the most prestigious hospitals in the world, serious errors in the administration of drugs were discovered for 6.7% of the patients. A survey of 30,000 New York State registrants found injuries caused by hospitalization in 3.7% of all hospitalizations, with about half of them being preventable and 13.6% of them causing the patient to die. It is estimated that in the United States, about 12,000 people die each year from preventable mistakes. When one examines the causes of heterogeneous damage it turns out that most of them are due to mistakes, and therefore they are actually preventable.
Types of errors - The types of errors are varied: errors in the administration of medication or dosage, surgical errors, errors in diagnosis, errors in judgment. Indeed, it should be noted that most of the errors do not amount to actual harm to the patient, and they come up for public discussion only in those cases where the mistakes caused harm to the patient.
No doubt mistakes happen in any human system, but one should strive to reduce mistakes as much as possible. Some have calculated that if certain systems made 0.1% mistakes, the following damages would occur: 2 rape landings per day at a Chicago airport; 16,000 lost mail items every hour in the US; 32,000 erroneous checks at US banks every hour.
Reasons for the increase in the prevalence of malpractice lawsuits - Since the 1970s, there has been a significant increase in the number of medical malpractice lawsuits against doctors, other health professionals, and medical institutions. This is especially true in the United States, and more recently even in Israel, and is less developed in European countries, and certainly in Third World countries. The reason for this steep rise is not in an objective proliferation of negligent acts on the part of physicians, but in social change. In the past, humans treated medicine as a science limited in its ability, when expectations of the ability to heal were limited, and therefore patients and their families treated the complications of treatments as factual data. Also, in light of the paternalistic relationship between the physician and the patient, it did not usually occur to patients or their families to demand explanations from physicians about their failures. There was also a long period in which the doctors maintained a kind of 'bond of silence', we would refuse to testify in the courts as experts about the negligence of their peers in the profession. In recent years, especially in light of the many developments in medical science, there has been a marked increase in the expectations of patients and their families from medicine and its treatments. At the same time, there was a significant decrease in the doctor's personal status, an autonomous relationship developed between the doctor and the patient, and there was a general atmosphere of lawsuits. All of this has led to a dizzying rise in medical malpractice lawsuits, and this matter is today the most common cause of court and medical court hearings.
Types of malpractice lawsuits - The lawsuits are very diverse, and apply to almost every medical field. Indeed, there are ‘disaster-prone’ areas of tort claims and criminal claims more frequently, and they are mainly the area of midwifery, the area of surgery, and the area of anesthesia. In the United States, for example, in the 1980s, 78% of gynecologists were sued at least once, and 37% were sued 3 times or more. In Israel, birth-related malpractice lawsuits account for about 10% of all court claims, but they are considered the most "expensive" claims, and constitute 42% of the total insurance risk in medical malpractice lawsuits.
Physicians stand the test of the courts both in relation to the medical operations they perform, and in relation to the omissions in the treatments they refrain from performing. The claims relate to errors in diagnosis, incorrect treatments (whether the error is in the choice of method of treatment, or the error is in the operation of the means of treatment), and to omissions in the performance of auxiliary tests or the provision of treatments.
Common examples of malpractice lawsuits against physicians relate to the following situations:
Delay in emergency treatment, such as delay in cesarean section for which a congenital asphyxia of the newborn was caused and residual brain damage; Or a delay in administering antibiotics in a serious infection, such as meningitis, which has resulted in residual brain damage.
Use of incorrect treatment methods, or incorrect use of appropriate treatment methods, which resulted in damage or death, such as sterilization following pregnancy; Insertion of an intrauterine device and pregnancy in its presence; Surgery in one place with damage in another area; Improper monitoring of general anesthesia; A decision on surgery and anesthesia in a situation where the risk of anesthesia and / or surgery is higher than reasonable; Unnecessary surgery; Medication dosing errors; Medication replacement.
Leaving objects at the surgery site.
Ignoring symptoms that require other judgment, such as suicidal data not taken into account; Suspicious symptoms of acute appendicitis not taken into account; Delay in correct diagnosis despite suspicious signs of such a diagnosis; Ignoring the presence of a foreign body in different body areas; Misdiagnosis of Momi undergoes al-Shema tests.
Failure to perform appropriate auxiliary tests for a differential diagnosis, such as failure to perform a tomographic scan of the brain in the case of atypical headache, which turned out to be a brain tumor.
Failure to obtain the consent of the patient or his guardian, or an improper and insufficient procedure of obtaining the informed consent, and more.
Characteristics of Defendant Physicians - Several studies in the United States have found various characteristic features of physicians against whom medical malpractice lawsuits have been filed. Some have found that the traits of surgeons from various surgical professions against whom there were almost no malpractice lawsuits were, among other things, complete specialization, belonging to a clinical-group system, and a religious connection. Other studies have found that doctors are less likely to sue than doctors for medical malpractice. On the other hand, doctors with longer professional training, or doctors who were graduates of more prestigious medical schools, did not 'win' a lower rate of malpractice lawsuits.
Reasons to file malpractice lawsuits - Various studies point to a variety of reasons and motives on the part of injured patients to file malpractice lawsuits:
Need for money to treat the consequences of medical harm; Advice and recommendations of other victims in the past, or of health care workers to file such claims; A push for lawyers who specialize in this field, and who are interested in the multiplicity of such lawsuits, as well as the advertisement of lawyers who specialize in filing such lawsuits; Anger against doctors and health systems, and a desire for revenge; Suspicions of concealing the truth and covering up negligence; A desire to receive complete and reliable information about the extent of the damage, and the reasons that led to the damage; A desire to prevent similar negligence and mishaps for others in the future.
Indeed, in the background of most of the reasons lies the problem of poor communication between the doctor and the patient. This includes the patient's sense of neglect; Non-disclosure of information at all, or improper disclosure of information; And an inability to understand the feelings of patients and their families, their aspirations, and their worldview, as well as a sense of contempt and disregard for the opinions of patients and their families. It is true that even in cases where medical errors occurred that caused the damage, but the communication between the patient and the doctor was good and open, no lawsuits were filed; On the other hand, when communication is poor, and there is an attempt to hide the truth or distort the truth, many lawsuits are filed, some of which turn out to be unjustified and unnecessary. It has also been found in some studies that the physicians against whom the most frequent malpractice lawsuits were filed were characterized by the patients being treated as having an interpersonal relationship that was impaired.
Plaintiffs' Data - One study from the United States found that the poor, the uninsured, and the elderly were significantly more likely to file fewer medical malpractice lawsuits; Sex and race were not found to be significant risk factors for a negligence claim.
Positive aspects of malpractice lawsuits - There is no doubt that from a socio-public point of view, legal control over doctors' actions is of great importance, and this also includes the issue of malpractice lawsuits. The main objectives are: deterrence of negligent conduct, thereby achieving an improvement in the quality of medical care; Compensation for the injured for the purpose of their rehabilitation and ability to deal with the damages caused to them; And identifying negligent physicians, prone to recurring errors and negligence.
Negative Aspects of Malpractice Claims - At the end of the 20th century there was a significant and unreasonable increase in the number of malpractice lawsuits. This has led to high health care costs, the annual cost of physicians' insurance, and the actions of defensive medicine designed to defend against malpractice lawsuits were estimated in the United States in the 1990s at $ 20 billion. There has also been a significant increase in the amount of compensation that the courts grant to victims.
This combination of a large number of lawsuits against doctors on the one hand, and the granting of huge sums as damages to plaintiffs on the other hand, misses the positive goals of socio-legal control, and causes significant negative effects.
ריבוי תביעות משפטיות בגין רשלנות רפואית, והחמרה רבה מצד בתי המשפט בהפעלת דרישות זהירות מופרזת על ידי הרופאים, וחיובם בדין באשמת רשלנות, מחטיא במידה רבה את המטרה של חינוך רפואי נאות לצורך שיפור איכות הטיפול. באחת העבודות מראשית שנות ה- 90 של המאה ה- 20 התברר כי 0.13% מכלל המאושפזים בבתי חולים בארה”ב הגישו תביעה משפטית נגד רופאים באשמת רשלנות. אכן, אותה קבוצה מצאה שאחוז גבוה בהרבה של נזקים לחולים מאושפזים נגרמו בגין רשלנות רפואית, אך רובם לא הגיעו לתביעה משפטית. על פי מחקרים שונים מתברר כי בארה”ב באותן שנים היו פי 10-8 יותר נזקי רשלנות בפועל לעומת מספר התביעות על נזקים כאלו. יש לציין, כי נתונים אלו לא השתנו במשך שנים רבות, למרות עליה משמעותית במספר התביעות המשפטיות בגין רשלנות רפואית. כמו כן נמצא שרק באחד מתוך 14 תביעות רשלנות זוכים התובעים לפיצויים. מכאן שהתביעות המשפטיות אינן משיגות את המטרה לשיפור איכות הטיפול הרפואי. יתר על כן, באחד המחקרים נמצא כי רופאים שנתבעו בעבר על רשלנות, ונבדקו לאחר מכן ביחס לרמתם הטכנית והמדעית, לא נמצאו חסרים בכך ביחס לרמה המקובלת, וההנחה היא כי הם נתבעו יותר מאחרים לא בגלל חסר מקצועי, אלא בגלל כשל תיקשורתי ביחסים בין-אישיים. כמו כן מוכיחים מחקרים שונים כי אחוז גבוה של רופאים נתבע פעמים חוזרות. באחד המחקרים התברר, כי תביעה קודמת נגד רופא מגדילה את הסיכוי לתביעה נוספת; הסיכויים לתביעה חוזרת גדולים יותר אם בתביעה קודמת הוטלו פיצויים גבוהים בהשוואה למצב בו הוטלו פיצויים נמוכים, או שלא הוטלו פיצויים כלל; וריבוי תביעות קודמות מעלה את הסיכוי לתביעות נוספות בהשוואה לתביעה בודדת קודמת. לאור נתונים אלו קורה לעתים קרובות שהרופאים הנתבעים מגיבים בדרך כלל בהתגוננות ובכעס ולא בשיפור ובלמידה. הנחתם היסודית היא, שתביעות רשלנות באות לפגוע בהם, הן אקראיות ובלתי מדעיות, הן מכריחות התנהגות באמות-מידה משפטיות שלא תמיד הולמות אמות-מידה רפואיות, ולפיכך התועלת החינוכית כלפי הרופאים היא מועטה.
Indeed, not only are the positive objectives of malpractice lawsuits not always achieved, but the multiplicity of such lawsuits also has negative aspects. One of the consequences of the proliferation of excessive malpractice lawsuits is the development of defensive medicine on the part of physicians. A legal conception that imposes on physicians ‘absolute responsibility’ and sweeping for their medical acts and omissions, causes physicians to care more for themselves than for the patient, and to push them to prepare in advance for possible legal action by him. So in the end the trend of proliferation of malpractice lawsuits against doctors harms patients themselves, since in order to avoid future lawsuits, and to avoid a conflict between 'reasonableness' as the doctor understands it in practice and in real time, and 'reasonableness' as the court may define it over time In many theoretical circumstances, doctors perform many tests and various surgeries, which are purely medically unnecessary, and sometimes even cause mental and physical suffering. With respect to unnecessary surgeries, caesarean sections should be noted in particular that are not necessary, and are done only to avoid negligence claims; They refer to many specialists to avoid taking any responsibility, thus causing long and prolonged queues at specialist and general practitioners; And they place the weight of decisions on the patients themselves, without any distinction, thereby imposing a heavy mental burden on the patients. There is also a concern that physicians will refrain from engaging in medical areas where there is a high percentage of malpractice lawsuits, such as midwifery. In the United States in the 1980s, 62% of gynecologists stopped working in midwifery before the age of 55, 31% stopped working before the age of 45, and some hospital physicians preferred to convert the midwifery profession to another medical profession. There are even some doctors who have considered early retirement, and others who have warned their sons against choosing medicine as their area of practice.
In addition to the economic cost of excessive malpractice lawsuits there is also a non-economic price, expressed in doctors' anger towards social systems and patients, suffering of accused doctors, which can manifest in depression, humiliation, and even physical illness, and unnecessary suffering of patients from defensive medicine.
Another negative aspect stems from the granting of huge sums of compensation to the injured, and the need for doctors to protect themselves by insurance against lawsuits on the one hand, and the development of defensive medicine for its high costs on the other. These trends have led to a significant aggravation of the problem of limited resources in medicine.
The crisis in the United States in the 1970s of the proliferation of medical malpractice lawsuits, and the need for physicians to insure themselves against huge sums against such lawsuits, led to constitutional changes in many U.S. states on the issue at hand.
Risk Management - In order to reduce the potential for a medical malpractice lawsuit, a new medical industry called 'Risk Management in Medicine' has been developed, with the aim of educating physicians to properly communicate with patients and their families; To ensure the quality of medicine according to accepted medical-scientific standards, both at the individual level of a single physician and at the level of the medical institution; Quickly and efficiently detect faults and failures in health systems, and deal with them effectively, before they develop in negative directions; To inform the public of health workers about malpractice lawsuits in the courts and their consequences; And prepare detailed clinical and behavioral guidelines for the ways of diagnosing, clarifying, and treating common diseases, and especially in medical conditions exposed to high-frequency lawsuits.
There is also room for other measures to prevent medical errors and malpractices, such as a comprehensive and exhaustive discussion in internal professional investigative committees, and methods of constant quality control in the medical system.
Halachic principles and primary sources
Rules and Principles
There are many laws and definitions pertaining to the rules of tort and killing charges. Only a few necessary rules and definitions concerning the hearings of the arbitrators in relation to medical malpractice will be presented here.
A person is doomed to the world - in principle, there is a halakhic rule that a person is doomed to the world, whether accidentally or intentionally, whether awake or asleep, whether by rape or willfully, and we were that a person who inadvertently harms must as if intentionally harmed. Some believe that this rule was actually said in ordinary rape (a kind of loss), but in complete rape (a kind of theft) every person is exempt; And there are those who believe that even in complete rape a person is doomed to the world.
The principle of accidentally charging a person, both by sabotage and causing death, does not apply when the perpetrator deals with the mitzvah, and as a result the injury or death was caused. Examples: a father who beat his son for his education, a rabbi who beat his student for his education, a court messenger who beat those who are required to flog according to a court, who lights a Hanukkah candle and harmed it, runs on Shabbat evening between the suns for a mitzvah and harmed, .
Mistakes of judges and doctors - We have given a special reference in Halacha to damages caused as a result of mistakes made by people who have responsibility and authority over others, and this question has especially been discussed in relation to judges and in relation to doctors. Sages and the arbitrators discussed at length the case of Dayan, who erred in his ruling. They distinguished between a mistake in a mishnah, we were wrong in the explicit law in the mishnah, or a mistake in a simple, visible and known thing, and a mistake in judgment, we were wrong in the issue of the world behaving differently from what he ruled, such as ruling as one opinion, Or most judges seem to have the other opinion; We discussed situations in which the parties accepted the judge's ruling in advance, we were in a state of consent to his ruling; We discussed the judge's charge where he made a mistake and the law does not return, or when it is not possible to return him and correct the mistake, and what he did may; And distinguished between an expert judge and many, and the laymen we discussed, and between a single judge and three who discussed.
In general, the basic assumption is that "anyone who has a flesh nature in it, it is impossible not to make a mistake and sin," and one of the reasons why it was necessary to give permission to a doctor to heal is the assumption "lest the doctor say what I have in this sorrow.
General reference to the doctor's mistake - A doctor who made a mistake can cause physical or mental damage, and can even cause the patient's death. On the one hand, there is room to credit the doctor and forgive him for his mistakes, so that there are doctors, to encourage the medical profession, to allow progress and development, and not to lock a door for those interested in practicing medicine. The assumption is that if the doctor tries as hard as he can, and an unforeseen rape occurs for which the patient is harmed - the doctor is exempt, like a captain leading the ship in a good and acceptable way, who has no responsibility if there was a big storm and sank the ship; On the other hand, there is room to enslave the doctor to strict regulations and significant punishments for his mistakes, to prevent carelessness and negligence, to encourage great care in treatment and surgery, and to compensate the injured.
Halacha advocates walking the average golden path between these two trends. On the one hand, the doctor is exempt from damages (if the damage was accidental, and if certain conditions were met, which are listed below in legal details); On the other hand, the law requires the punishment of a negligent doctor, or a doctor who intentionally harms.
Reasons for exempting the doctor from torts - even though a person is liable for damages, and he is liable for damages even if he caused them inadvertently, we nevertheless identified a number of reasons for exempting the doctor from tort law if he erred and inadvertently harmed:
For the sake of fixing the world, we were so that there would be people who would want to be doctors and practice their profession for the benefit of the sick, and so as not to lock a door in front of the lifeguards.
Because he deals with a mitzvah, and he who deals with a mitzvah that harmed - is exempt.
Because his mistake should be seen as rape, not accidental, as explained below.
Because he has nothing but what his eyes see.
Because there is no medicine without a certain degree of danger, and therefore the assumption is that the patient has consented to it, as explained below.
Primary Sources
The primary sources concerning the doctor's negligence were discussed mainly in the Tosefta and not in the Talmud. This subject occupies very little place in the halakhic discussions in the original halakhic literature and in the literature of the Great Responsa. Presumably, the reason was the reluctance to prosecute a doctor who does his job faithfully, and receives much acclaim and training from the general public.
Various sources in the appendix in tort law - In the case of an artisan doctor, who cured with the permission of a court and the tort, we noted contradictions in the primary sources. In one source it is said, that he is exempt from human policy, and his judgment is devoted to heaven, without specifying whether he erred in error or intentionally; Another source states, that if the harm is inadvertently exempt, and if the harm is intentionally obligatory, from the correction of the world; And in another source it is written, that if the harm is exempt, but if it is harmed more than it is proper must.
There are those who have written to compare these sources, that a physician who has done properly is defined as inadvertent, and is exempt from damages, and whoever has done more than proper is defined as intentional, and is liable for payments, And there are those who wrote, that the sources disagree on the question of whether the one who deals with the mitzvah is exempt from tort law from the principle of law or not.
Various sources in Chazal in the law of exile - even in the case of a doctor who killed, we noted contradictions in the primary sources. One source says that a doctor who accidentally killed is exempt from exile, and his sentence is given to heaven; And another source says that an artisan doctor who healed with the permission of a court and killed, then it is exile.
Some have written to compare these sources, that a master physician who erred and killed is exempt precisely if the error is such that a physician may also err after giving heart and inquiry and demand in the body of the disease, but if erroneous error more than proper, To make such a mistake, he must be exiled; There are those who have divided between a doctor who knew of human beings who erred, that he owes exile, and a doctor who erred without notice, who owes nothing, and is exempt between human law and heavenly law, whether in payments or in exile, An unknown sin.
Why does a doctor have to go into exile? - Many have already asked why the doctor must be exiled, after all, the law is that anyone who inadvertently performs a mitzvah is not exiled. A number of excuses were given for this question, and all of them were difficult to one degree or another. There are those who wrote that the physician went down and died, and was found not to have performed a medical act, and when he killed the patient, there is no observance of a mitzvah at all, which is not the case (father, rabbi, court messenger) But did what they were commanded to do; There are those who have written, that in fact the doctor's duty in accidental killing is the law of the great father and court messenger, and what he owes in exile is not from the principle of law but only if he wants to go out by heavenly duty, he deserves to receive exile; Some have written that the rabbi, the father and a court messenger did not make a mistake when they accidentally killed, and they are not commanded to accurately estimate the battered person's ability to withstand punishment, whereas the doctor is wrong because he is expected to estimate the treatment correctly; Some have written that a doctor who erred in surgery turned out retroactively that he was not an artist in the same thing, and it is as if his beginning was with prohibition and without permission, while the others began with permission and mitzvah; There are those who wrote, that the doctor is different from the rabbi and the father and a messenger of a court, according to the method that medicine itself is undesirable, and therefore when he is wrong and kills must, but the very education and teaching are desirable; There are those who have written, that the doctor has a greater duty of responsibility than a messenger of a court and a father and a rabbi, and this maximum responsibility obliges him in the laws of heaven and in the duty of exile more than any other profession; And there are those who wrote, that the three subscribers in the appendix if killed their sentence as rapists, because usually their beatings do not kill, but a doctor was wrong and killed his sentence as an accident, because many times he deals with situations that can lead to the death of the patient.
In the definition of "his duty is devoted to heaven" - some say that the intention is that he owes a punishment in heaven, and when he pays - he will get rid of the punishment; Some say that the intention is that he must pay in the laws of heaven, and as long as he does not pay, the doctrine of robbery applies to him, but he has a punishment from heaven even in a way that he is exempt from the laws of heaven, and is forbidden if he caused harm to his friend; Some believe that the intention is that although there is no power in the hands of a court to force it to pay, but in any case in things that without coercion it is worth urging him to pay, and the intention that a court informs him that they can not charge him, but the doctor should go out of heaven, And there are those who disagree and think that the language of the law of heaven does not mean to be obligated even slightly in human law, but should be informed that he himself must do to correct the injustice, and if he comes to the court to go what to do, he is told not to go out by heaven until he pays the damage; And there are those who wrote, that the intention that God knows if he intended to harm, and if he really did not intend to harm, is exempt from even the laws of heaven, and we were that it is not at all a matter for a court.
There are those who remarked that there is a difference between the word 'his duty is dedicated to heaven', and the word 'obligatory in the law of heaven', whose duty is dedicated to heaven meaning that God knows whether he intended to harm or not, Get out of heaven.
There are those who wrote, that the son of Noah must not go out by the duty of heaven, that he must not only because of the settlement of the world, but not in the laws of heaven.
Exile Law in Shulchan Aruch - A number of explanations have been given for the fact that Shulchan Aruch brings the law of exile to a doctor who oversaw and killed, even though there are no exile laws in practice today:
There are those who have written, that the intention is that if he comes out of heaven, he deserves to be exiled; There are those who wrote, that this fact came to teach us the substance of the prohibition involved in accidental killing; And there are those who wrote, that the intention is to arrange for him ways of repentance in the weight of exile. Indeed, we have indicated in the arbitrators proposals for various substitutes for the punishment of exile at this time.
Private Laws
We have defined in the fusaks various fences by which the harmful or lethal physician is discussed, and they depend on the definition of the physician-professional status of the physician, his intentions and knowledge, the definition of the medical actions that resulted in the patient's injury or death, and their methods of execution.
Charge modes exile or payments
A doctor who intentionally harmed must pay the damages. There are those who have written, that he owes for the five things (harm, sorrow, slackness, Sabbath and shame) as harmful; And there are those who were content with whether he owed all five things, or only damage.
A doctor who erred and harmed inadvertently, by all accounts is exempt from human law, but there are those who have written that he is liable for damages in the laws of heaven; And there are those who wrote, that he was condemned as a rapist and not as an accident, and he is exempt from both human and heavenly laws.
There are those who wrote that even though an artisan doctor who made a mistake inadvertently and harmed, is exempt from paying, but in any case he should not be paid the medical fee.
A doctor who dies intentionally, will move from his job, and will go and do another job. If he repents and repents of his deeds, and accepts that from now on he will be properly careful, the removal from office is never, but for a definite period of time; And if he does not return it, not only will he be removed permanently, but he should also be punished with a fine or imprisonment, as the court sees.
A doctor who made a mistake and died by mistake - some believe that if he learned that he had made a mistake, he must be exiled, even though he is an expert and knowledgeable artist, and even though he was cured by a court; Some have written that all medical activity is a danger to the patient, but because the doctor heals in a court of law, and he deals with a mitzvah, when he makes a mistake in medicine he is considered a rapist, not an accident, and is therefore exempt from any punishment, including exile; There are those who have written that a doctor who has studied properly and acted properly according to the eyes of men, is condemned as a rapist, and does not have to be exiled, for a doctor is not an angel and may make a mistake, but if he admits he did not study properly, And there are those who wrote that the law of exile in a doctor who was wrong and dead was not said at all when the mistake was in the judgment, that in such cases there is no duty of exile at all, but it is a doctor who intended to give the right medicine and gave another medicine that killed the patient Not clean.
Doctor / therapist pest or deadening
Specialist and non-specialist doctor - Some have written that all situations in which a doctor is exempt from damages or exile are actually in a trained doctor who has received permission from a court, and nowadays giving a diploma from a recognized medical school, and licensing medicine on behalf of the Ministry of Health, With further approval from a tribunal, but if he has not received permission from a tribunal, even if he is an expert and knowledgeable, then he is liable for payments in any case, whether inadvertent or intentional; There are those who wrote, that whoever is not versed in medicine, and allowed a court to practice medicine, is said to be exempt from human law and obligated by heavenly law, and therefore in our time there is no reality that a person gets a license to practice medicine if not versed in medicine. sky; And there are those who wrote that even nowadays a doctor who has caused harm to a patient must pay, both accidentally or intentionally, even though he is a licensed expert, because in order to be exempt from payments you also need court permission, which does not exist nowadays.
A nurse or specialist doctor - someone who is knowledgeable and qualified for the same thing and made a mistake - is exempt, but if he is not familiar with the same thing, such as a nurse giving treatment that is not within her authority, or a young specialist doctor who treated a patient without consulting a specialist. A person.
There are those who wrote that if an intern performed surgery, and as a result the duration of the surgery was prolonged, and the patient was harmed because of the prolonged anesthesia, then he must also be in the hands of a person, which is a 'too much pity'.
A specialist doctor who decided on the need for surgery, and a nurse or junior surgeon performed the surgery, and the patient died, and it turned out that there was a mistake in the consideration for the surgery itself, the charge is on the specialist who ordered the surgery, but the performers According to their education, this is a wrong decision.
Free doctor or for a fee - there are those who divided between a doctor who received a salary for his trouble, and erred and harmed, whose debt is owed by heaven, and a doctor who treated for free and erred and harmed, who by all accounts is exempt even in heavenly law; And there are those who have written, that a physician who treats a wage and erred, or who was lazy or negligent in consulting a physician specialized in it, owes all opinions; And if he received a wage, and did all he could do and was wrong, then it is the dispute of the former whether he owes or is exempt.
A therapist who is not a doctor - there are those who wrote that a doctor who accidentally killed - is exiled, but a person who is not a doctor, who acted according to the doctor's instructions in a place of mental supervision, and killed the patient - is exempt from exile.
The harmful or deadly actions, and ways of performing them
Proximity of the event - Some have written that a doctor who dies accidentally must be exiled precisely if the patient dies immediately after treatment, but if he dies after a while, the patient's death can be attributed to other factors; And there are those who wrote, that even in such a case - must.
Direct contact - a doctor owes in payments or in exile precisely if it is clear that the medicine or treatment he gave was the cause of the damage or death; But when the matter is in doubt, and it is not known whether the patient has been injured or died as a result of the medicine or surgery, the physician is exempt, whether in human law or in heavenly law.
Some have written that exile in a doctor who accidentally killed is actually by mistake during surgery, who killed the patient with his hands; But a physician who has erred in drug treatment, such as an internal physician who gave a prescription for an incorrect remedy, if he overheard or vomited, and killed or added pain, and meant healing and did not mean harm, is exempt even in heavenly law, having nothing but what his eyes see, and harm only by grammar; And there are those who have written, that an internal physician is exempt even in the laws of heaven, even if he has launched medicine in his hands; And there are those who have written, that in our time it is possible to find out and ascertain better the condition of the patient, his diagnosis and the ways of treating him, the law of giving medicines is the law of a surgeon, and in both it is obligatory.
The doctor's mistake - a doctor who did everything he had to do, and looked carefully at the details of the case, and acted as most doctors would in the same medical condition, and made a mistake in diagnosis or medication, and his mistake was reasonable, so any doctor might make a mistake. Head, without negligence, and without being able to consult a greater expert than he - if harmed or killed, then he is exempt from payments or exiles, and does not owe even heavenly law, and has no sin, which the sage has already said 'the doctor's oversight is the Creator's intention'. And it is possible that the idea of a specialist doctor's mistake is like the mistake of a specialist judge, because since he is an expert, the bad luck of that specialist caused him to make a mistake. But if there is a proven assessment that the doctor's mistake that caused the damage was due to the fact that he did not learn and did not know a basic thing that is usually known to doctors, then he must be liable for the damage in human law as well.
There are also those who wrote that what the doctor finds out if he died by mistake is precisely when he intended to give one medicine and gave another medicine, or intended to operate on a sterile knife, and operated on a knife that was not clean, but if he erred in judgment, he is not in exile.
A surgeon who did the right thing, but because of pressure and tension during the operation an error was caused, and as a result the patient was harmed, exempted by human law, and obliged by heavenly law, and should be done personally to appease and compensate the patient.
There are those who have divided between a doctor's mistake that could have been prevented, that even though the doctor made it without any intention of harming, his duty was inadvertent, and obligatory in the laws of heaven; And an unavoidable mistake, which is condemned as rape, and exempt even in the laws of heaven.
The doctor's negligence - if the doctor harmed the patient by being negligent and did not look closely - there are those who wrote that he is exempt from human law and obligated by the laws of heaven; And there are those who have written, that if he erred due to laziness and insufficient scrutiny, or was a young and inexperienced physician and did not consult with his superiors, then he is also bound by human law as an ordinary captain.
Some have written that if another doctor made a different diagnosis, and the first doctor insisted on his diagnosis, and did not consider the other options, and caused harm or death to the patient, then he must. And a doctor who insisted on giving some treatment, even though they drew attention to the possibility of danger in this treatment of the patient's condition, and indeed it turned out that he was wrong in his assessment and caused harm to the patient because he ignored the comments, he must pay for the damage. exile
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A doctor who gave a medicine to a patient in Sobro which is the right medicine for his disease, and it turned out that he was wrong about it and the patient was injured or died, is exempt; But if out of insufficient attention the doctor changed the medicine, and instead of injecting the substance needed for the patient's medicine, he mistakenly injected him with another substance, which caused him harm or caused his death, then he owes in payments and exile.
And the same is true of a doctor who, due to lack of sufficient attention, made a mistake and injected a shot in a place that was not worthy of an injection, and by this an injury was caused to the patient, or the patient died as a result, he must.
And a doctor who erred and gave an acute ointment where it was not needed at all, and as a result the patient was injured or died, he must.
And a doctor who, during the treatment, made an incision in a place that should not have been cut at all, and by doing so the patient is harmed, he must pay in installments.
And a doctor who operated, and cut more than appropriate, or erred in the fact that surgery was not necessary at all, and as a result the patient died, it is negligence, and must be exiled.
Act and omission - the doctor's liability for damages is not necessarily if he did an act, but also if the patient was harmed due to the doctor's negligence in returning and not doing, such as not coming to the patient when called to him in the middle of the night, and especially if the patient comes to a certain doctor For that